Court File and Parties

Court File No.: CV-15-0262 Date: 2017-07-20 Superior Court of Justice - Ontario

Re: Mukesh Narula, Plaintiff And: Ontario Corporation Number 2195615 o/a BBuckswood Productions Inc. and Shuaib Shafi, Defendants

Before: Barnes J.

Counsel: Lata Menon, for the Plaintiff Self-Represented Defendants

Heard: July 19, 2017

Endorsement

Introduction

[1] This is a motion by the Plaintiff (Mukesh Narula) for an order striking the Defendants’ Affidavit of Documents or an order striking the Defendants’ Statement of Defence. The Defendants are unrepresented. The Defendants have chosen not to respond to the Plaintiff’s motion.

[2] Upon reading the material filed and hearing the submissions of counsel for the Plaintiff, I conclude that the Defendants fabricated emails that form the crux of the defence. The Defendants’ conduct constitutes an abuse of the court’s process. Therefore, the Defendants’ Statement of Defence is struck.

Background Facts

[3] The Plaintiff commenced an action against Ontario Corporation Number 2195615, operating as BBuckswood Productions Inc. and Shuaib Shafi (the Defendants). Mr. Shafi is the sole shareholder and controlling mind of the Corporate Defendant. The Plaintiff claims that he advanced C$165,000 to the Defendants. The Defendants promised to return the advances received from the Plaintiff. The Defendants reneged on their promise and the Plaintiff commenced this action.

[4] The Defendants were represented by counsel and filed a Statement of Defence. The Defendants rely on emails and text messages to prove that they do not owe the Plaintiff any money. The Defendants served and filed an Affidavit of Documents.

[5] The Affidavit of Documents included emails dated December 23, 2012 and April 2, 2013. These emails are alleged to have been sent by the Plaintiff to himself that the Defendants did not owe the Plaintiff any money.

[6] The Plaintiff claims he did not send these emails and, therefore, he seeks the striking of the Defendants’ Statement of Claim, and in the alternative, the Defendants’ Statement of Defence.

Discussion and Analysis

[7] I am satisfied that the Defendants included fabricated emails in the Affidavit of Documents. This conduct constitutes an abuse of the court’s process and an affront to the integrity and proper application of justice and, therefore, the Defendants’ Statement of Defence is struck.

[8] Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 30.02(1) requires parties to an action to disclose any document relevant to any matter in the action which is in their possession, control or power. Rule 30.03(1) requires a party to an action to serve an Affidavit of Documents disclosing “to the full extent of the parties knowledge, information and belief, all documents relevant to any matter in issue in the action that will have been in the party’s possession, control or power”.

[9] Rule 30.07 provides a party with a mechanism for rectifying subsequently discovered documents or errors in the Affidavit of Documents. Rule 30.08(2) provides the court with a list of possible remedies where a party fails to disclose or produce the relevant document. These remedies include the option of suspending the party’s right to initiate or continue an examination for discovery; striking the party’s pleading; or to make any other order that is just.

[10] The Plaintiff’s counsel wrote to the Defendants and requested back up documentation to support the authenticity of the emails. The Defendants did not respond. The Plaintiff submits that by failing to respond the Defendants have failed to disclose relevant documents and therefore pursuant Rule 30.08(2) the Defendants’ Affidavit of Documents should be struck or in the alternative the Defendants Statement of Defence should be struck.

[11] If the Defendants’ conduct was only one of failure to produce relevant document(s) the remedies contemplated by Rule 30.08(2) short of striking the Statement of Defence would be more appropriate in these circumstances. For example, the Defendants’ Affidavit of Documents could be struck with an order that the Defendants submit a new and complete Affidavit of Documents. Unfortunately the conduct of the Defendants is more egregious.

[12] The deliberate inclusion of fabricated documents in an Affidavit of Documents is conduct that cannot be condoned by the courts. To condone such conduct is to bring the administration of justice into disrepute. Conduct that will bring the administration of justice into disrepute constitutes an abuse of process. The courts have an inherent jurisdiction to dismiss an action on the basis of an abuse of process. The categories of conduct that constitute an abuse of process is not closed. The court should have the ability to respond to different conduct that may constitute an abuse of process. Such an analysis is conducted in accordance with the facts of each case: Mascan Corp v. French, 64 O.R. (2d) 1 (Ont. C.A.); Toronto (City) v. C.U.PE., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77 (S.C.C.).

[13] The Affidavit of Documents include an email dated April 2, 2013, supposedly from the Plaintiff to Mr. Shafi at email address sammar@bbukswood.com and copied to Sunny Margo at sunny.jas@hotmail.com. In this email, the Plaintiff purports to indicate that the Defendants do not owe the Plaintiff any money. In an affidavit dated June 20, 2016, Sunny Margo indicates no knowledge of the said transaction and no receipt of the email. The email inbox of the Plaintiff indicates that the said email was not sent from the Plaintiff’s email address.

[14] Also included in the Defendants’ Affidavit of Documents is another email dated January 31, 2016, purported to be from the Plaintiff to the Defendants with an acknowledgement from the Plaintiff that the Defendants owed him no money. The Plaintiff denies sending this email. The Plaintiff’s email inbox indicates that no such email was ever sent. The Defendant, Mr. Shafi, has failed to respond to the Plaintiff’s request that he provide a copy of his email inbox to demonstrate that he received these emails.

[15] The Plaintiff speculates that his email was hacked by the Defendants. I do not have sufficient evidence to reach such a conclusion, however, I am satisfied, on a balance of probabilities, that the said emails are fabricated and the Defendants knowingly included documents they knew to be false in their Affidavit of Documents. This conduct constitutes an abuse of the court’s process.

[16] The fabricated documents are important components of the Defendants’ defence. Reliance on these fabricated documents is unfair to the Plaintiff, could result in a miscarriage of justice and will bring the administration of justice into disrepute. For all these reasons, the appropriate remedy is an order that the Defendants’ Statement of Defence be struck.

[17] The Plaintiff shall be paid his costs of this motion within 30 days as stipulated in signed draft Order.

Barnes J. Date: July 20, 2017

2017 ONSC 4456 COURT FILE NO.: CV-15-0262 DATE: 20170720 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: MUKESH NARULA, Plaintiff AND: ONTARIO CORPORATION NUMBER 2195615 o/a BBUCKSWOOD PRODUCTIONS INC. and SHUAIB SHAFI, Defendants ENDORSEMENT Barnes J. Released: July 20 2017